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what actually exists. This is a specimen of his language: "King Mob has there a warning. He will not allow himself to be spoken to, except in accents of adulation and assent, and if you approach him in any other tone, the only answer which he deigns to make to you is a reassertion of his former position as confident and uncompromising as if it proceeded from the Comte de Chambord or Pio Nono himself. Strange and almost incredible as it seems to us the sad and instructive fact is attested by writers of the very highest authority, native as well as foreign, that this democratic country has shut itself out from the advantages of free political discussion so effectually, that it is perhaps not too much to say, that no monarchical state in Europe ever was as impervious to the voice of counsel from without as America has been during the present century." If this is the kind of stuff that is taught to the students of law at the University of Glasgow, we trust that that institution is not a representative

one in Scotland.

IN

NOTES OF CASES.

the case of Del., Lack. and West. R. R. Co. v. Salmon, 10 Vroom, 299, recently decided by the Court of Errors and Appeals in New Jersey, it is held that where one by negligence or misconduct occasions a fire on his premises, or the premises of a third person, which spreads from thence to plaintiff's property, and causes an injury, the injury is not, as a legal proposition, too far removed from his negligent act to involve him in legal liability. This is in direct conflict with the doctrine maintained in Pennsylvania R. R. Co. v. Kerr, 1 Am. Rep. 431; 62 Penn. St. 353; and Ryan v. N. Y. Cent. R. R. Co., 35 N. Y. 210. These cases the court say cannot be sustained by principle or authority. This is undoubtedly true, the cases being numerous in which responsibility is laid upon the original wrongdoer, though intervening agencies, without his fault, have interposed. Scott v. Sheppard, 2 W. Bl. 892; Sneesby v. London and York R. Co., L. R., 9 Q. B. 263; Romney Marsh v. Trinity House, L. R., 5 Exch. 204; S. C., L. R., 7 Exch. 247; George v. Skivington, L. R., 5 Exch. 1; Collins v. Middle Level

Comm'rs, L. R., 4 C. P. 279; The George and Richard,

L. R., 3 A. & F. 466; Byrne v. Wilson, 15 Irish L. Rep. 332; Pollett v. Long, 56 N. Y. 200; Powell v. Deveney, 3 Cush. 300; Vanderburgh v. Truax, 4 Denio, 464; Thomas v. Winchester, 6 N. Y. 397; Carter v. Towne, 103 Mass. 507. And the two cases cited as maintaining a doctrine contrary to that of the principal case, have been to some extent questioned in New York. In Webb v. R. W. and O. R. R. Co., 10 Am. Rep. 389; 49 N. Y., at p. 428, Folger, J., says: "I am of the opinion that on the disposition of the case before us, we are not to be controlled by the authority of the case in 35 N. Y., more than we are by that of the long line of cases which preceded it."

And Grover, J., in Pollett v. Long, supra, at p. 206, speaks doubtfully of the authority of Ryan v. N. Y. Cent. R. R. Co. See also as criticising the same cases: Perley v. Eastern R. R. Co., 98 Mass. 414419; Kellogg v. Chicago and Northwestern R. R. Co., 26 Wis. 223; 7 Am. Rep. 69; Fent v. Toledo, Peoria and Wabash R. R. Co., 59 Ill. 349–359; Grand Trunk R. R. Co. v. Richardson, 91 U. S. Rep. 454471. And the doctrine in Pennsylvania R. R. Co. v. Kerr has been much shaken in Pennsylvania by the recent decision of Pennsylvania R. R. Co. v. Hope, 80 Penn. St. 373. As to the general principle see Hart v. West. R. R. Co., 13 Metc. 99; Hookset v. Concord R. R. Co., 38 N. H. 242; Smith v. Lond, and S. W. R. R. Co., L. R., 5 C. P. 98, and note to case 7 Am. Rep. 80.

In Tancil v. Seaton recently decided by the Supreme Court of Appeals of Virginia, the action was by the finder of a bank note against a bailee to whom he delivered it for safe-keeping, and who re

fused to redeliver it on demand. The action was defended upon the ground, among others, that the title of the plaintiff, acquired by the finding (which was communicated to defendant at the time the note was delivered to him), was not sufficient to support the action. The court held that the defense was not

The

sustainable and that the title of the finder was good against every one but the true owner. general rule that the finder of lost goods has title against every one except the owner, was claimed by defendant not to be applicable to choses in action, and the case of McLaughlin v. Waite, 9 Cow. 670; affirmed 5 Wend. 404, was cited as sustaining this ticket vendor's certificate is not property, but only doctrine. In that case it was held that a lottery an evidence of a right to property, that it does not belong to the finder so as to enable him to recover of the vendor on it. This would not, however, author

ize the application of a similar rule to bank notes, which are by common consent treated as money. Miller v. Race, 1 Burr. 457. The case of Bridges v.

Hawksworth, 7 Eng. L. & Eq. 424, very strongly resembles the principal one. The plaintiff in that case having picked up from the floor of the shop of them over to defendant to keep until the owner defendant a parcel containing bank notes, handed

should claim them. They were advertised by the defendant, but no one appearing to claim them and three years having elapsed, plaintiff requested defendant to return them, tendering the cost of the advertisements and offering an indemnity. The defendant having refused to return them, action entitled to the notes as against defendant. was brought, and it was decided that plaintiff was sustaining the general rule mentioned Avery v. mire, Str. Rep. 505; Brandon v. Huntsville Bank, 1 Stew. (Ala.) 320; Matthews v. Harsell, 1 E. D. Smith,

See as

Dela

393. N. Y. & Harlem R. R. Co. v. Haus, 56 N. Y. 176, is an instructive case upon this subject, though the precise point involved in the principal case was not at issue.

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English authors have paid due attention to the preparatory studies of Lord Chatham, and of his son. Nature, prodigal in gifts, had left to each the common legacy of toil as the condition of his becoming an orator. We are told that "the best clue to Pitt's (Chatham's) own mental tasks, more especially in the field of oratory, is afforded by those which he enjoined to his favorite son." We are also told, on the authority of Lord Stanhope, "that the son ascribed his lucid order of reasoning to his early study of the Aristotelian logic, and his ready choice of words to his father's practice in making him every day, after reading over to him

In his letter, Prof. Sanborn says: "Col. Parker, in his 'Golden Age of American Orators,' a work much read by students, attempts to prove that Mr. Choate was not 'a natural orator' like Henry and Clay. I think that Mr. Choate's early history refutes that theory. I learned from Prof. Shurtleff, his teacher, something of his eloquence in college." He then gives an extract from Choate's Valedictory Address, which, so far as I can judge, indicates the freedom and range of thought, and the felicity of expression that might distinguish an orator "to the manner born," and adds: "In this brief paragraph are the keynotes of his life, attachment to friends, love of learning and admiration of nature." The professor also mentions two circumstances which tend to illustrate the character of the address and the effect of its delivery, from which it

might be inferred that if nature ever "tried her 'prentice

hand" in fashioning a complete orator, she did so with

young Choate. He says that when Choate spoke "his pathos drew tears from many who were not used to the melting mood." Also, that "one rustic maiden was there from Norwich, Vt. She was all ears, eyes and heart; she gazed, loved and wept. On the following Monday, while bending over her wash-tub, she said, 'Mother, you can't think how pretty that young man, who had the valedictory, spoke. He was so interesting that I cried; and, law!' she added, holding up her checked apron to her eyes, 'I can't help crying now, only thinking on 't.'"

self some paper on the classics, translate it aloud and continuously in English prose." As to Patrick Henry, we accept all the praise that can be bestowed consistently with nature and with recorded experience. But it may be observed that, like many fluent speakers, he had acquired great experience by talking "an infinite deal of nothing" up to the hour when the vision of our independence, to be achieved by war, opened before him as an apocalypse, transformed his spirit and gave a prophetic tone to his utterances. As to Henry Clay, we need only recall his efforts at the debating society to cultivate a habit of speaking, and his statement made long after to a class of students, that he owed his "success in life to the habit, early formed and for some years continued, of reading daily in a book of history or science and declaiming the substance of what he had read in some solitary place." Mr. Clay was not peculiar. Wheaton, in his Life of William Pinkney, says that "he always continued to declaim in private."

But in the chapter "On the Study of Forensic Eloquence," which Mr. Isaac Grant Thompson has inserted in his edition of Warren's Law Studiesperfecting the work by the scholarly treatment of an important topic which Warren had neglected— illustrative instances are given. He regards "the opinion that excellence in speaking is a gift of nature, and not the result of patient and persistent labor and study," as mischievous and unfortunate, and happily enforces that view by referring to the studious efforts of Cicero, Chatham and Fox, Curran, Choate and others. Of Choate he says: "Forensic rhetoric was the great study of his life, and he pursued it with a patience, a steadiness, a zeal, equal to that of Chatham and Curran.” reminds us that Murray, afterward Lord Mansfield, carried on the study of oratory with the utmost zeal, and that a friend had caught him in "the act of practicing before a glass, while Pope (the poet) sat by to aid him, in the character of an instructor;" and adds, "Such are the arts by which are produced those results that the uninitiated ascribe to genius."

He

This matter is of present interest, as we would not have the student adopt the notion that Mr. Choate was goaded on in his studies by a sense of want of which other great orators had not been conscious. Nor should we regard the statement that Chatham and others were natural orators, as signifying any thing more than that they possessed gifts favorable to the cultivation of eloquence. A ready command of language, fine and quick perception, delicate wit and fancy, a fervid imagination, an exquisite sense of the beautiful, a voice sweetly tormenting the hearer, even in the remembrance of it, a graceful and impressive manner - all of which Mr. Choate had-however important as prerequisites, do not qualify the orator. It is his office to

instruct, persuade and convince; but without study there can be no knowledge, without knowledge no argument, without argument no real influence in the discussion and disposition of public affairs. In the courts, in legislative and popular assemblies, the question sure to arise is whether the speaker is master of his subject in its substance, details and relations. The persons addressed may distinguish immature from ripe thoughts; information from knowledge; mere impressions from experience. They know that while the voice may be trained for oral discourse, as it may be for music, the mind should have a corresponding culture. Many of them, pitiless as critics, would accept the statement of Cicero that "the orator must possess the knowledge of many sciences, without which a mere flow of words is vain," and would have sympathized with Doctor Johnson when he checked the praise bestowed on a fine speaker, not often heard, as having great resources: "You cannot know as yet; the pump works well, but how are we to know whether it is supplied by a spring or a reservoir?" Mr. Choate's views of the study proper to the orator were not less exacting. His ideal of excellence in oratory, considering it as one of the fine arts, may have been so high that he never could have fully satisfied his own aspirations. But in his lectures and addresses his sentiments are given in the spirit of an unfaltering disciple; his precepts have an electric touch-glow like stars in the firmament of thought. He knew what he taught in large measure and in minute details. He fortifies himself by appeals to history, to experience, and to natural laws. The moral elements in his topics, however obscure, never elude his grasp; the most rugged event or feature he touches palpitates as with a spirit of life and beauty. The philosophy of history is taught suggestively, not by a tedious process, but flashed upon the page as a revelation. His illustrations often have a logical flavor; his inferences the certainty of mathematical deductions. The student may, therefore, follow him with assured steps. Indeed, no student should fail to study addresses like those on "The power of a state developed by mental culture;" on "The conservative force of the American bar," and on "The eloquence of revolutionary periods." He who has given his days and nights to Demosthenes and Cicero, Thucydides and Tacitus, would find his apprehensions quickened, the wealth he has garnered up in his mind enriched by the spirit of Mr. Choate's expositions.

Mr. Choate's solicitude as to the choice and use of words in the culture of style, is known to have been great. That he was not peculiar in this branch of study appears from familiar instances. Cicero had taught that the orator's "style of speaking must be formed not only by the choice of words, but by the skillful arrangement and construction of sentences." That instruction has been repeated

5

in varied forms by great teachers from Quintilian
down. Doctor Johnson and Dean Swift concur in
'proper words in
referring to a perfect style as
proper places." In perfecting their own works
many distinguished authors seem to have accepted
that as a definition. When Gibbon wrote over and
over the first chapter of his history, and Brougham
the conclusion of his speech in the Queen's case,
they were not changing the facts or sentiments, but
striving, by choice words, to improve the style. Mr.
Canning, who, like Macaulay, was continually cor-
recting and refining, is said "to have chosen his
words for the sweetness of their sound, and arranged
his periods for the melody of their cadence." That
Byron found it difficult to satisfy himself in the
selection of words, appears from the explanatory
notes to an approved edition of his poems. Fre-
quent changes were made. In one instance which
we recall, he erased a word and substituted another,
then rejected the latter and restored the former;
"ask Gifford."
still in doubt, he wrote below,
Emerson must have approved of Montaigne's choice,
or he would not have said, "Cut these words and
they bleed; they are vascular and alive." Some of
Mr. Webster's imposing figures of speech had been
"each word weighed a ton."
thought over, prepared to the last syllable; hence
the eulogy that
Chatham felt the importance of the study when he
went twice through Bailey's Dictionary, carefully
considering every word. So, also, did Choate when
he formed the habit of studying the dictionary page
But the
by page, as mentioned by Mr. Gillett.
question as to the best use of words appeals to a
larger and riper experience. Writers and speakers
differ in that use as they differ in taste, culture, and
moods of mind, in perception and judgment, but
they would agree that the strength, grace and
beauty of the words used depend upon the harmony.
of their relations to each other, and to the thoughts
and sentiments expressed.

In a splendid outburst of declamation Mr. Choate
refers to the acquisitions and oratorical powers of
Mr. Adams, "the old man eloquent," and finds him
using "the happiest word, the aptest literary illus-
tration, the exact detail, the precise rhetorical in-
strument the case demands." Mr. Choate had a
clear conception of the studies by which such a
power might possibly be acquired. He appears to
have read the ancient and the modern histories with
constant reference to the influences, near or re-
mote, which led to or qualified events. He had
studied the literature of Greece and Rome as criti-
In such and in related
cally as that of later periods; loved Cicero and
Burke about the same.
studies he had a theory as exacting as that an-
nounced by Hugh Miller when he said, in substance,
that an anatomical acquaintance with the bones and
muscles is necessary to the painter who represents
the human figure, and that he who describes natural

erence to that great man is most attractive to me,
and I could not resist the impulse of writing a lec-
ture not long ago, on his brilliant career, that I
might say something to young students, inadequate
though it might be, that would perhaps incite them
by his example of untiring industry to a more en-
thusiastic pursuit of knowledge and a more earnest
study of the art of eloquence. That lecture has al-
ready been delivered in various colleges and law
schools, and I hope has led some of my listeners to
read Prof. Brown's memoir of our great advocate,
your own papers in the LAW JOURNAL, and the remi-
niscences of Dr. Storrs, Mr. Carpenter and others
who knew and appreciated him.

scenery should know the science and strata of the
rocks. So, after Mr. Choate could read the Greek
and take in the sense with ease, he reads, pen in
hand, and with the dictionaries before him. Our
best Greek scholars may need such aid occasionally;
even Porson is said to have confessed that he could
not read Greek as he could his newspaper. But
Mr. Choate's purpose was to know the relation and
significance of each word, as well as to catch the
spirit and style of the author, so even reading thus
did not suffice. He says, "Translation daily is
manifestly my only means of keeping up my Eng-
lish. This I practice in my post-prandial readings,
but I fear it is not quite exacting, laborious and
stimulant enough. I have a pretty strong impres-
sion that the only sufficient task would be Demos-
thenes, severely, critically rendered, yet with the
utmost striving of words, style, melody, volume of
sound, and impression." Again he says: "But
everywhere, under whatever form, style, manner,
are to be assiduously cultivated and carefully
adapted to the subject." Again, and as to the pre-
cise and reflected benefits: "I think I do not over-
estimate the transcendent value and power, as an
instrument of persuasive speech, of what may be
described as the best language- that which is the
very best suited to the exact demand of the dis-
course just where it is employed. Every word in
the language, by turns, and in the circle of revolv-place without a rival and without a cavil. Years
ing oratorical exigencies and tasks, becomes pre-
cisely the right one word, and must be used, with
one exception, that of immodest ones."

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He further says: "How such a language - such an English is to be attained is plain. It is by reading and by hearing-reading the best books, hearing the most accomplished speakers." In a letter of advice to a student-Richard S. Storrs, Jr.he says: "I would read every day one page at least, more if you can, in some fine English writer, solely for elegant style and expression. William Pinkney said to a friend of mine, he never read a fine sentence in any author without committing it to memory.' The result was decidedly the most splendid and most powerful English spoken style I ever heard."

Such was the result with Mr. Choate himself. No modern author owed less to borrowed thoughts or forms of expression, or, in the higher, better, artistic sense, more to the ministrations of other minds. But the benefits were absorbed by a process as gradual, as natural, if not as insensible as those by which trees gather nutriment from the sun, air, rain, and from the generous soil. J. N.

BOSTON, June 7, 1877.

MY DEAR SIR-I thank you for those numbers of THE ALBANY LAW JOURNAL containing your interesting papers on Mr. Choate. Every thing with ref

I wish I had the opportunity to comply more closely with your kind request, and send a better response to your invitation. I can only, before getting off for the summer, send you this fragmentary epistle.

Mr. Choate is now, to employ Landor's significant
line,

"Beyond the arrows, shouts and views of men,"
and his supreme qualities are only beginning to be
apparent in their grander aspects. As a lawyer
ranking among the highest; as an eloquent
advocate second not even to Lord Erskine,
whom he far surpassed in scholarship; as a patriot
devoted to public duty solely, he is now taking his

66

ago I hung up his portrait in the little room we call
our library," for a constant reminder of the long
continued enjoyment it was my own good fortune
to have derived from the kind-hearted Mentor and

friend. To have had the privilege of living in the
same city with him for so many years, of hearing
the sound of his voice in public and in private for a
quarter of a century, was indeed of itself an educa-
tion. To the young men of my time, who lived so
long under the spell of his eloquence, he was an in-
spirer, an initiator, for he taught us by his example
to reverence and seek whatever was best in learning
and excellent in thought and character. As young
students of literature, eager to listen and acquire if
we could, we found a new power created within us
by contact even with such a teacher and guide. To
follow him, to wait upon his footsteps through the
courts of law, the senate or the lecture room, was in
a certain sense to be

"From unreflecting ignorance preserved."

His own great acquirements taught us to nurse that
noble self-discontent which points and leads to a
loftier region of culture, and impelled us to aspira-
tions we had never dreamed of until his affluent
genius led the way. Like Charles Fox, he was born
with the oratorical temperament, and so he magnet-
ized all the younger men who flocked about him,
eager to be instructed. I do not believe the "high-
placed personage" ever lived in any community who

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homage; the very least as feeling her care, and the greatest as not exempted from her power." One of Choate's former office students once said to him: "The more I get into practice the more I like the law." "Like it!" said Choate; "of course you do. There is nothing else for any man of intellect to like!" This was said in that fine frenzy of exaggeration which he sometimes delighted in, but no young man could hear him discourse of jurisprudence and not wish to join the ranks. Law was the banner of his pride; the flux and reflux of party strife were distasteful to every fibre of his intellect, and he always gave us to understand that he consid

had more affection and reverence from the youth of his time than Mr. Choate. There were about him habitually that diffusive love and tenderness which make idolatry possible even among one's contemporaries. While he electrified us, he called us at the same time by our Christian names; and when he beckoned us to come, we dared and delighted to stand by his side and listen. His willing and endearing helpfulness made him beloved by his inferiors as few men of his conspicuous eminence ever were before, and one could not approach him and remain unmoved, or only partially attracted. You could not meet him on the street even without having a fresh impulse given to your circulation. Dur-ered his profession worthy of all the hope of ambiing the period when he took early morning walks, some of us, mere boys at that time, loving the sight of the man and the music of his voice, used to be on his track, watching for him on his matutinal rounds. As he came sailing into view,

"On broad, imperial wing,"

with that superb and natural gait so easily recognized by those who knew him,

"Far off his coming shone."

As he swung himself past, he would drop into our
greedy ears some healthy, exhilarating quotation,
fresh from the fount of song; some golden sentence
suited to the day and the hour; something ample
and suggestive, that would linger in our memories
and haunt our young imaginations years afterward,
influencing perhaps our whole lives onward.
Happy the youth who was occasionally privileged
to walk with him on such occasions,

"Under the opening eyelids of the morn,"
for then he would discuss perhaps in his deep and
never-to-be-forgotten tones of admiration the lofty
Homeric poems; quote the divine and to him familiar
words of Plato; dilate with a kindred rapture over
some memorable passage of Plutarch, or hold up for
counsel and admonition some of the sublimest in-
spirations of the Bible.
Well might a young man,
thus enchanted, exclaim with Comus:

"Oh, such a sacred and home-felt delight,
Such sober certainty of waking bliss
I never heard till now!"

He seemed ever on the alert to quicken and inspire
thought in the heart and understanding of the
young. I remember, on the eve of sailing on my
first brief visit to Europe, he passed me on the stairs
at a crowded reception, and whispered as he went
by: "Don't fail, my young friend, if you go near it
in your travels, to pause at the grave of Erasmus
for me."

It was dangerous for any young man, not a student at law, to hear him discourse of the profession as he fully and solemnly believed in it, accepting as he did the splendid metaphor of Hooker-"Her seat the bosom of God; her voice the harmony of the world; all things in heaven and earth doing her

tion, and all the aspirations for excellence. At the bar Mr. Choate towered superior to every kind of jealousy, of suspicion, of malevolence; to every narrow and sordid motive, to all the meaner trepidations of mortality. He was by nature a gentleman, and he had no petty vanities, either public or private. He was indeed an inspired orator. What power, what tenderness, what magnetism pervaded his utterances! His voice vibrated with every sentiment, every impulse of beauty and wisdom. He ran over the whole gamut of expression at will. When he spoke of flowers his words seemed to have the very perfume of flowers in them, and when he painted the ocean, which he loved so fondly, his tone was as the scent of the sea when the wind blows the foam in our faces. As Churchill said of Garrick, he also had indeed

"Strange powers that lie

Within the magic circle of his eye."

If he habitually composed for the ear more than for the eye, it was because his victories were to be won face to face with his fellow men. I have heard him argue a hundred cases, perhaps, large and small, and he always seemed alike invincible, as if no mortal power could take his verdict from him. His manner to the opposing counsel was full of courtesy and conciliation, but if that counsel became arrogant and insulting, he would slay him with a sentence so full of suavity and keenness that the unmannerly victim never knew what killed him.

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There were uninstructed and unsympathetic listeners, of course, who described Mr. Choate as declamatory, and accused him of being over-worded, and over-colored, driving a substantive and six," as they called it—but those same platitudinous dwellers in the twilight of the mind would no doubt quarrel with the tints in Milton's "Allegro," and find Collins's "Ode to the Passions" highly improper. Mr. Choate was no doubt rich and exuberant in his style, but who would not prefer the leap of the torrent to the stagnation of the swamp? It was truly said by Mr. Everett in Faneuil Hall at the sad hour of our sharp bereavement in 1859, that with such endowments as Mr. Choate possessed, he could fill no

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